Opinion
2:22-cv-00872-CDS-EJY
08-04-2022
KEITON SMITH, Plaintiff, v. NDOC, et al., Defendants.
SCREENING ORDER
Plaintiff Keiton Smith, who is incarcerated in the custody of the Nevada Department of Corrections (“NDOC”), has submitted a civil-rights complaint under 42 U.S.C. § 1983 and filed a new application to proceed in forma pauperis. ECF Nos. 1-1, 5. The matter of the filing fee will be temporarily deferred. Plaintiff filed another complaint with his new application to proceed in forma pauperis. ECF No. 5 at 17-90. Although the new complaint appears largely duplicative of the original complaint, it is two pages longer and Exhibit M appears different. Compare ECF No. 1-1 at 71-72, with ECF No. 5 at 88-90.
Federal Rule of Civil Procedure 15 permits “[a] party to amend its pleading once as a matter of course within . . . 21 days after service of a responsive pleading” or dismissal motion. Fed.R.Civ.P. 15(a)(1)(B). No responsive pleading or motion has been filed in this action. So the Court construes Plaintiff's new complaint to be a First Amended Complaint (“FAC”) filed under Rule 15(a), and it disregards Plaintiff's original complaint. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (holding that “an amended pleading supersedes the original”). The Court now screens the FAC under 28 U.S.C. § 1915A.
I. SCREENING STANDARD
Federal courts must conduct a preliminary screening in any case in which an incarcerated person seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings, however, must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) the violation of a right secured by the Constitution or laws of the United States, and (2) that the alleged violation was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
In addition to the screening requirements under § 1915A, pursuant to the Prison Litigation Reform Act (“PLRA”), a federal court must dismiss an incarcerated person's claim if “the allegation of poverty is untrue” or if the action “is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for failure to state a claim upon which relief can be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the court applies the same standard under § 1915 when reviewing the adequacy of a complaint or an amended complaint. When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).
Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making this determination, the court takes as true all allegations of material fact stated in the complaint, and the court construes them in the light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). While the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id.
Additionally, a reviewing court should “begin by identifying pleadings [allegations] that, because they are no more than mere conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can provide the framework of a complaint, they must be supported with factual allegations.” Id. “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. “Determining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.
Finally, all or part of a complaint filed by an incarcerated person may therefore be dismissed sua sponte if that person's claims lack an arguable basis either in law or in fact. This includes claims based on legal conclusions that are untenable, like claims against defendants who are immune from suit or claims of infringement of a legal interest which clearly does not exist, as well as claims based on fanciful factual allegations, like fantastic or delusional scenarios. See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).
II. SCREENING OF FAC
In his FAC, Plaintiff sues nine defendants (and seven Does) for events that allegedly occurred while he was incarcerated at Warm Springs Correctional Center (“WSCC”). ECF No. 5 at 17-23. Plaintiff sues Lorenzo; Naughton; Mcbec; Cheryl; Kerry; Nethanjah Childers; Richard Ashcraft; Mesa; and Nevada, ex rel. NDOC. (Id.) Plaintiff asserts nine claims and seeks monetary and injunctive relief. Id. at 32-43. Plaintiff alleges the following.
The name of this defendant is indecipherable in the FAC, this is the Court's best guess. See ECF No. 5 at 18, 19, 25.
Prisoner Brendan Nasby prepared or helped prepare the FAC. ECF No. 5 at 43.
The Court uses any position or job title that Plaintiff ascribes to the defendants in the FAC. This should not be construed as a finding about the truthfulness of those allegations.
Plaintiff was arrested in November 2007 and held at Clark County Detention Center (“CCDC”). Id. at 23. He was 17 years old. Id. Plaintiff notified CCDC's medical staff about his back pain and was prescribed two medications to treat it. Id. Plaintiff was sentenced and transferred to the NDOC's custody in 2013. Id.
Plaintiff was first housed at High Desert State Prison (“HDSP”) and told medical staff at that facility about his back pain. Id. Plaintiff was transferred to Ely State Prison (“ESP”) several months later and told medical staff at that facility about his back pain. Id. at 24. When Plaintiff was returned to HDSP in 2015, he notified medical staff there that his back pain was worse. Id. When Plaintiff was sent to WSCC in 2017, he notified medical staff about his back pain. Id.
Plaintiff was given an X-ray in 2018. Id. It was determined that Plaintiff has a “slight deterioration between” two vertebrae. Id. Doe Doctor A told Plaintiff an MRI was needed to determine the problem, and gave Plaintiff a pamphlet of stretching exercises to do and pills to take. Id. Doe Doctor A also asked when Plaintiff would be released from prison. Id.
Plaintiff was next examined by Dr. Naughton. Id. Plaintiff asked when he'd have an MRI. Id. Dr. Naughton replied, “we'll see” and told Plaintiff to do the stretches and take the pills. Id. Dr. Naughton also gave Plaintiff muscle rub to use. Id. Dr. Naughton was more concerned about Plaintiff receiving treatment when he got released. Id.
Plaintiff was examined by Dr. Lorenzo in 2019. Id. Dr. Lorenzo asked if Plaintiff was doing the stretches and taking the pills. Id. Plaintiff asked when he'd have an MRI. Id. Dr. Lorenzo responded that Plaintiff was going to get one and asked when Plaintiff was being released from prison. Id. Plaintiff was sent for an X-ray on his neck and upper spine at Northern Nevada Correctional Center (“NNCC”). Id. He asked Doe Nurse A why he was getting those X-rays; his lower back hurt and he was supposed to be scheduled for an MRI. Id. Doe Nurse A didn't know. Id. Dr. Lorenzo put in the order for the X-rays. Id. at 24-25.
Plaintiff next saw Dr. Mcbec, and she did a full physical. Id. at 25. Plaintiff told Dr. Mcbec that he needed an MRI on his lower back to know what was wrong and asked when that would happen. Id. Dr. Mcbec responded that Plaintiff was quite young, and asked if the stretches and pills were working. Id. She ordered Plaintiff a Transcutaneous Electrical Nerve Stimulator (“TENS”) unit to keep indefinitely to treat the pain. Id. Dr. Mcbec also asked if Plaintiff would be getting out of prison soon. Id.
Plaintiff saw Doe Doctor B at NNCC after writing kites about back pain in 2019. Id. Plaintiff told Doe Doctor B that Doe Doctor A said he needed an MRI, but it hadn't yet been ordered. (Id.) Doe Doctor B asked if the pills were working, said he'd continue to check on Plaintiff, and asked when Plaintiff was being released from prison. Id.
While he was at WSCC, Plaintiff did a medical “man down” on April 14, 2021, because his back pain was too much to bear. Id. Doe Nurse B admitted that Plaintiff received the wrong pills by accident. Id. Plaintiff filed a kite on July 1, 2021, because he was given the wrong pills for the second time. Id. Plaintiff's prescription for Lyrica wasn't being refilled, so he was told he'd have to wait a month for medication. Id. When Plaintiff filed a kite complaining about his pain, he was told he was scheduled to see a provider. Id.
Plaintiff saw Doe Doctor C in 2020 who gave him different pills. Id. Plaintiff asked if he was ever going to get an MRI and said that his back pain was bad. Id. Plaintiff received shots in his lower back by Doe Doctor C and Nurse Kerry. Id. at 25-26. Plaintiff was again asked when he'd get out of prison. Id. at 26.
Plaintiff next saw Dr. Cheryl and told her about his back pain and the fact that Doe Doctor A said he needed an MRI that still had not been ordered. Id. Dr. Cheryl said she'd investigate, asked about Plaintiff's pain level and if he wanted different pills, and gave Plaintiff another shot for his back. (Id.) Dr. Cheryl also asked if Plaintiff was getting released soon. Id.
Plaintiff saw Doe Doctor D via a telemedical appointment in early 2021. Id. Kerry was present for the appointment. Id. She had been present in Plaintiff's medical treatment since the first X-ray. Id. Doe Doctor D had Plaintiff perform movements to see his range of motion and noted that Plaintiff was very young, but his hips did look “off.” Id. He asked if the pills were helping and asked if Plaintiff was being released from prison soon. Id.
Around this time Plaintiff's back pain became so severe that he was in the medical department four times a week to complain to Kerry. Id. Plaintiff also sent kites. Id. Kerry advocated for Plaintiff every time explaining to the doctors that his back pain was bad, and he needed an MRI. Id. Plaintiff was given a full blood workup and Kerry gave him the results. Id. at 26-27.
On January 24, 2022, prison staff called medical because Plaintiff was in so much pain. Id. at 27. Plaintiff saw Dr. Haulke and told him about his need for an MRI. Id. Dr. Haulke immediately ordered an MRI for Plaintiff, said he could visibly see the pain that Plaintiff was in and could also visibly see that something was wrong with Plaintiff's back. Id. Plaintiff had the MRI in January and Dr. Benson told him the results: three vertebrae collapsed; he'd need surgery to correct the issue. Id. Dr. Benson also said that medical staff should have followed up with an MRI after the X-ray in 2018 because the issue could have been maintained. Id. Dr. Benson said that Plaintiff's collapsed vertebrae would need to be fused and he'd get six rods put into his back. Id.
Plaintiff does not include Dr. Haulke among the defendants listed in the FAC, and the Court does not construe the FAC as alleging any claims against Dr. Haulke.
Plaintiff does not include Dr. Benson among the defendants listed in the FAC, and the Court does not construe the FAC as alleging any claims against Dr. Benson.
Plaintiff thereafter filed a grievance about WSCC providing him inadequate medical care. Id. Acting Associate Warden Ashcraft rejected the grievance, stating it was untimely and an abuse of the inmate grievance procedure. Id. Plaintiff filed another informal grievance that was similarly rejected by Ashcraft. Id. at 27-28. Plaintiff filed a first-level grievance that was rejected by Acting Warden Childers as untimely and an abuse of the grievance procedure. Id. at 28.
On March 10, 2022, Plaintiff and Kerry went through Plaintiff's medical file and tagged documents for copying and sending to Plaintiff's family for litigation purposes. Id. Kerry didn't know that Plaintiff had filed a grievance on March 1 against WSCC's medical staff. Id. Plaintiff suspected that the grievance had not been sent to the medical department. Id. Plaintiff filed a medical kite stating that Caseworker Mesa wanted proof that Plaintiff tried to work this matter out with the medical department. Id.
By the end of March, Kerry told Plaintiff not to speak to her and asked why he filed a grievance about the medical care he received at WSCC. Id. Plaintiff complained to Nurse Dixieabout Kerry, who responded that Plaintiff should “be careful” because Kerry has “done this to people before.” Id. at 28-29. Doe Nurse C was present when Kerry dismissed Plaintiff. Id. at 29. Doe Nurse B told Plaintiff that his files had been sent out, but he simply didn't get notice. Id.
Plaintiff does not include Nurse Dixie among the defendants listed in the FAC, and the Court does not construe the FAC as alleging any claims against Nurse Dixie.
Plaintiff tried to get Kerry's attention on March 16, but Medical Officer Ruben told Plaintiff the nurses didn't want to speak with him anymore. Id. Toward the end of March Ruben brought Plaintiff a paper to sign confirming that Kerry witnessed him going through his medical file. Id. Ruben said Kerry was “covering her bases.” Id.
Plaintiff does not include Medical Officer Ruben among the defendants listed in the FAC, and the Court does not construe the FAC as alleging any claims against Medical Officer Ruben.
In April, Dixie called Plaintiff into her office and asked if he had a medical appointment that day. Id. Plaintiff said he didn't. Id. Dixie said she saw Plaintiff's medical file on Kerry's desk, and she “wouldn't put it past Kerry” to remove things from Plaintiff's medical file “if she is mad at [him].” Id. Plaintiff filed a couple of medical kites about the issue and Kerry responded that Plaintiff needed to quit talking to her. Id.
On April 13, Plaintiff wrote a medical kite asking when he'd be going out to see David Jones at Tahoe Fracture like he was told would happen. Id. The response, signed by Officer Ryerson because medical staff were still ignoring Plaintiff, said medical was waiting for a date and time. Id. at 29-30. On April 27, Plaintiff was told he was being transferred to Southern Desert Correctional Center (“SDCC”). Id. at 30. Plaintiff filed an emergency grievance explaining that he was still waiting for an appointment with his pre-op doctor and a bus ride would damage his back. Id. Medical rejected Plaintiff's grievance and request to delay his transfer. Id.
The next day-the day of the transfer-Plaintiff went to the medical department asking for a shot of tramadol to dull his pain for the seven-hour bus ride to SDCC. Id. Kerry and Doe Nurse C told Plaintiff to leave. Id. When Plaintiff arrived at SDCC, he informed the medical department about his back condition and surgery he was supposed to have to treat it. Id. at 31. Plaintiff was “immediately given a tramadol shot, given [a] double mattress, and put in to see the doctor.” Id.
Plaintiff's pain has been increasingly worse since he was transferred to SDCC. Id. Plaintiff must walk up and down hills to eat breakfast and lunch, which causes him a lot of pain. Id. He doesn't eat every day because of the pain involved in walking to the culinary hall. Id. Plaintiff saw Dr. Wulff on May 18 who asked Plaintiff why he was at medical and why he needed surgery. Id. Plaintiff said that his medical file looked like it was missing items and explained he had just gone through it months ago at WSCC with Kerry. Id. Dr. Wulff said he would recommend that Plaintiff be transferred to a northern prison to continue his medical treatment. Id. Plaintiff's back pain got worse since his transfer; he lost some feeling in his penis; it's hard for him to sleep; his feet hurt all day; he's physically tired because of the pain; and he's mentally and emotionally exhausted, stressed, and depressed. Id.
Based on these allegations, Plaintiff contends that defendants violated his rights under the First, Eighth, and Fourteenth Amendments and are liable under state-tort laws. The Court liberally construes the FAC as alleging claims based on four different theories of liability: (1) First Amendment retaliation; (2) Eighth Amendment deliberate medical indifference; (3) Fourteenth Amendment denial of grievance procedures; and (4) Nevada tort laws. The Court addresses each theory and any issues in turn. ...
B. Plaintiff names defendants that cannot be sued in federal court
By naming Nevada, ex rel. NDOC as a defendant, Plaintiff appears to be suing the State of Nevada and the NDOC. But Plaintiff cannot pursue § 1983 claims or state law claims against the State of Nevada in federal court because the State has not waived its Eleventh Amendment sovereign immunity. Brooks v. Sulphur Springs Valley Elec. Co-op., 951 F.2d 1050, 1053 (9th Cir. 1991) (holding that “[t]he Eleventh Amendment prohibits federal courts from hearing suits brought against an unconsenting state”); accord Will v. Michigan Dep't of State Police, 491 U.S. 58, 65 (1989) (holding that states are not persons for purposes of § 1983); see Nev. Rev. Stat. § 41.031(3) (stating that the State of Nevada does not waive its Eleventh Amendment immunity); see also Stanley v. Trustees of California State Univ., 433 F.3d 1129, 1133-34 (9th Cir. 2006) (holding that 28 U.S.C. § 1367, the supplemental jurisdiction statute, “does not abrogate state sovereign immunity for supplemental state law claims”). The NDOC is an agency of the State of Nevada so it, too, is immune from suit in federal court under the Eleventh Amendment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (explaining that the NDOC is a state agency and immune from suit under the Eleventh Amendment). Indeed, the Ninth Circuit has held that “[t]he Eleventh Amendment's jurisdictional bar covers suits naming state agencies and departments as defendants, and [it] applies whether the relief sought is legal or equitable in nature.” Brooks, 951 F.2d at 1053. So the Court dismisses defendant Nevada, ex rel. NDOC from the FAC with prejudice because amendment in federal court would be futile.
C. Plaintiff cannot bring his state-law claims in this federal action
Under Nevada law, the State of Nevada has generally waived sovereign immunity for state tort actions in state court. Nev. Rev. Stat. § 41.031(1). To sue the State of Nevada or a state employee, the plaintiff must sue the State of Nevada or appropriate political subdivision. Nev. Rev. Stat. §§ 41.031, 41.0337. “In any action against the State of Nevada, the action must be brought in the name of the State of Nevada on relation of the particular department, commission, board or other agency of the State whose actions are the basis for the suit.” Id. § 41.031(2).
In Craig v. Donnelly, the Nevada Court of Appeals held that “while a plaintiff must name the State as a party to any state tort claims in order to comply with NRS 41.031 and NRS 41.0337, this statutory requirement does not apply to 42 U.S.C. § 1983 claims, even when brought in the same complaint as a plaintiff's state tort claims. Indeed, the State cannot be named as a party to a plaintiff's § 1983 civil rights claims.” 439 P.3d 413, 414 (Nev. App. 2019). The Craig court addressed whether a plaintiff had to name the State as a party in a state court case. Id. at 413.
With respect to a federal court case like this one, the State of Nevada does not waive its immunity from suit conferred by the Eleventh Amendment. Nev. Rev. Stat. § 41.031(3). As explained above, the State of Nevada and arms of the state generally cannot be sued in federal court. Although the State of Nevada may consent to federal court jurisdiction for state-law claims through removal, this is not a removed case. See Lapides v. Bd. of Univ. Sys. of Ga., 535 U.S. 613 (2002) (holding that state's removal of suit to federal court constitutes waiver of its sovereign immunity).
The only viable defendants Plaintiff names are employees of the State of Nevada or its agency the NDOC. Plaintiff alleges seven state-law claims against the defendants: (1) intentional infliction of emotional distress, (2) negligence, (3) concert of action, (4) conspiracy, (5) aiding and abetting, (6) medical malpractice, and (7) medical negligence. The Court finds that Plaintiff must raise his state-law claims in state court and dismisses them accordingly. See Hirst v. Gertzen, 676 F.2d 1252, 1264 (9th Cir. 1982) (holding that where Montana law deemed governmental entities indispensable parties in a state-tort claim against a county employee, the federal court had no supplemental jurisdiction over the state-tort claim if it had no jurisdiction over the indispensable party). Plaintiff's state-law claims are therefore dismissed without prejudice and without leave to amend as amendment in federal court would be futile.
D. First Amendment retaliation
Prisoners have a First Amendment right to file prison grievances and pursue civil-rights litigation in the courts, “and to be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012); Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2004). A retaliation claim in the prison context has five elements. Watison, 668 F.3d at 1114. “First, the plaintiff must allege that the retaliated-against conduct is protected.” Id. Filing or submitting a grievance, complaint, or lawsuit about prison conditions or alleged constitutional violations is protected conduct. Entler v. Gregorie, 872 F.3d at 1031, 1039 (9th Cir. 2017). The form that a prisoner's complaint takes-“even if verbal”-"is of no constitutional significance, and threats to sue fall within the purview of the constitutionally protected right to file grievances.” Id.
Second, the plaintiff must allege that “the defendant took adverse action against [him].” Watison, 668 F.3d at 1114. “‘The mere threat of harm can be an adverse action.'” Id. (brackets and emphasis omitted) (quoting Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009)). The third factor requires the plaintiff to “allege a causal connection between the adverse action and the protected conduct.” Id. Allegations “of a chronology of events from which retaliation can be inferred is sufficient” at the screening stage. Id.
“Fourth, the plaintiff must allege that the ‘official's acts would chill or silence a person of ordinary firmness from future First Amendment activities.'” Id. (quoting Robinson, 408 F.3d at 568). “A plaintiff who fails to allege a chilling effect may still state a claim if he alleges [that] he suffered some other harm that is more than minimal.” Id. (brackets and quotation marks omitted) (quoting Brodheim, 584 F.3d at 1269 and Robinson, 408 F.3d at 568 n.11). The fact “[t]hat the retaliatory conduct did not chill the plaintiff from suing the alleged retaliator does not defeat the retaliation claim” at the pleading stage. Id.
And the fifth factor requires the plaintiff to allege “‘that the prison authorities' retaliatory action did not advance legitimate goals of the correctional institution.'” Id. (quoting Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985)). A plaintiff can sufficiently plead “this element by alleging, in addition to a retaliatory motive, that the defendant's actions were arbitrary or capricious, or that they were unnecessary to the maintenance of order in the institution.” Id. (internal quotation omitted).
Based on the allegations, Plaintiff engaged in a protected activity when he filed a grievance about WSCC's medical staff inadequately treating his back pain. Kerry took adverse action against Plaintiff: she removed documents from his medical file about his back condition and need for surgical treatment, turned him away from medical when he sought a hold on his transfer to another prison so he could complete his medical treatment, and denied him a shot of tramadol to treat his pain before his seven-hour bus ride to another prison. Plaintiff pleads facts to connect Kerry's action to his protected conduct: Kerry asked why Plaintiff filed a grievance against WSCC's medical staff and her conduct occurred shortly after medical staff were informed about the grievance. Plaintiff alleges that he suffered severe pain and discomfort because of Kerry's actions, and that her actions prolonged the treatment of his back condition. Plaintiff also alleges facts to show that Kerry's actions were retaliatory and arbitrary or capricious: Dr. Wulff opined that Plaintiff's transfer should have been held pending completion of his medical care in northern Nevada, and took steps to send Plaintiff back to northern Nevada for that purpose. The Court finds that these allegations are enough for screening purposes to state a colorable First Amendment retaliation claim against Kerry.
Plaintiff also asserts this claim against Mesa, Childers, and Ashcraft. But Plaintiff does not allege that either of them took any adverse action against him, let alone in retaliation for his filing a grievance. Plaintiff alleges that Childers and Ashcraft denied his grievance but does not allege facts that they did so in retaliation for Plaintiff exercising his First Amendment right to file grievances. And Plaintiff does not allege facts that Mesa did anything at all. The First Amendment retaliation claim can therefore proceed against only defendant Kerry.
E. Eighth Amendment deliberate medical indifference
The Eighth Amendment prohibits the imposition of cruel and unusual punishment and “embodies ‘broad and idealistic concepts of dignity, civilized standards, humanity, and decency.'” Estelle v. Gamble, 429 U.S. 97, 102 (1976). A prison official violates the Eighth Amendment when he acts with “deliberate indifference” to the serious medical needs of an inmate. Farmer v. Brennan, 511 U.S. 825, 828 (1994). “To establish an Eighth Amendment violation, a plaintiff must satisfy both an objective standard-that the deprivation was serious enough to constitute cruel and unusual punishment-and a subjective standard-deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled on other grounds by Peralta v. Dillard, 744 F.3d 176, 1082-83 (9th Cir. 2014).
To establish the first prong, “the plaintiff must show a serious medical need by demonstrating that failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal quotations omitted). To satisfy the deliberate indifference prong, a plaintiff must show “(a) a purposeful act or failure to respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference.” Id. “Indifference may appear when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care.” Id. (internal quotations omitted). When a prisoner alleges that delay of medical treatment evinces deliberate indifference, the prisoner must show that the delay led to further injury. See Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985) (holding that “mere delay of surgery, without more, is insufficient to state a claim of deliberate medical indifference”).
Based on the allegations, Plaintiff had chronic back pain that was treated with medication for the entire time he was in NDOC's custody, which began in 2013 when he was 17. An X-ray in 2018 showed that Plaintiff had slight deterioration between two vertebrae. Doe Doctor A stated that an MRI was needed to know the reason for the deterioration. But Doe Doctor A didn't order an MRI. Doe Doctor A instead prescribed medication and gave Plaintiff instructions for stretches to perform. Plaintiff's pain continued and worsened. In the years since his X-ray, Plaintiff told Drs. Naughton, Lorenzo, Mcbec, and Cheryl and Doe Doctors B, C, and D about his chronic back pain, that his pain had worsened, and that Doe Doctor A recommended he get an MRI to understand why an X-ray showed he had deterioration between two vertebrae at a young age. The doctors responded by prescribing Plaintiff medications and asking how his stretching was going and when he was getting out of prison.
No doctor ordered an MRI until January 2022 when Dr. Haulke ordered one after seeing a visible issue with Plaintiff's back. The MRI revealed that three vertebrae had collapsed. Dr. Benson opined that to correct the condition, Plaintiff needed surgery to fuse the vertebrae and six metal rods implanted. Dr. Benson said Plaintiff's condition could have been maintained if Plaintiff had got an MRI when Doctor A said he needed one.
While Plaintiff was waiting for his appointment with a pre-operation doctor to be scheduled, he was informed that he would be transferred to SDCC in southern Nevada. Plaintiff attempted to get a medical hold on his transfer until after the treatment for his back condition was complete, but Kerry turned him away. Kerry and Doe Nurse C denied Plaintiff a shot of tramadol on the day of his transport to SDCC. The seven-hour bus ride was very painful.
The Court finds that these allegations are enough for screening purposes to state a colorable deliberate medical indifference against Naughton, Lorenzo, Mcbec, and Cheryl and Doe Doctors A, B, C, and D for delaying Plaintiff's MRI for five years. These allegations are also enough to state a colorable claim against Kerry and Doe Nurse C for failing to respond to Plaintiff's need for pain management for the seven-hour bus ride from WSCC to SDCC. But Plaintiff does not allege facts that Mesa, Childers, or Ashcraft or Doe Nurses A or B denied, delayed, or intentionally interfered with Plaintiff's medical treatment. So the Eighth Amendment claim for deliberate medical indifference can proceed now against defendants Naughton, Lorenzo, Mcbec, Cheryl, and Kerry, and this claim can proceed against Doe Doctors A, B, C, and D and Doe Nurse C when Plaintiff learns their true names and obtains leave of Court to substitute them as defendants.
F. Fourteenth Amendment denial of grievance procedures
Prisoners have a constitutional right of access to the courts. Lewis v. Casey, 518 U.S. 343, 346 (1996). To establish a violation of the right of access to the courts, a prisoner must establish that he or she has suffered “actual injury.” Id. at 349. The actual-injury requirement mandates that an inmate “demonstrate that a nonfrivolous legal claim had been frustrated or was being impeded.” Id. at 353. “The right of meaningful access to the courts extends to established prison grievance procedures.” Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995), overruled on other grounds by Shaw v. Murphy, 532 U.S. 223, 230 n.2 (2001). “[T]he object of the denial-of-access suit, and the justification for recognizing that claim, is to place the plaintiff in a position to pursue a separate claim for relief once the frustrating condition has been removed.” Christopher v. Harbury, 536 U.S. 403, 413 (2002).
Plaintiff alleges that his grievances about medical staffs' failure to provide him adequate medical care were rejected and denied, and Kerry removed items from his medical record. But Plaintiff does not plead facts that a nonfrivolous legal claim was frustrated or impeded because of defendants' conduct. The Court finds that the allegations are not enough to state a colorable claim for denial of grievance procedures. So the Fourteenth Amendment claim for denial of grievance procedures is dismissed without prejudice.
III. CONCLUSION
IT IS THEREFORE ORDERED that a decision on the application to proceed in forma pauperis (ECF No. 5) is deferred.
IT IS FURTHER ORDERED that the operative pleading is the First Amended Complaint (“FAC”) (ECF No. 5 at 17-90).
IT IS FURTHER ORDERED that the state-law claims for intentional infliction of emotional distress, negligence, concert of action, conspiracy, aiding and abetting, medical malpractice, and medical negligence are dismissed from the FAC without prejudice and without leave to amend because amendment in federal court would be futile.
IT IS FURTHER ORDERED that the First Amendment retaliation claim can proceed against only defendant Kerry.
IT IS FURTHER ORDERED that the Eighth Amendment claim for deliberate medical indifference can proceed now against defendants Naughton, Lorenzo, Mcbec, Cheryl, and Kerry, and this claim can proceed against Doe Doctors A, B, C, and D and Doe Nurse C when Plaintiff learns their true names and obtains leave of Court to substitute them as defendants.
IT IS FURTHER ORDERED that the Fourteenth Amendment claim for denial of grievance procedures is dismissed without prejudice.
IT IS FURTHER ORDERED that defendant Nevada, ex rel. NDOC is dismissed from the FAC with prejudice because amendment in federal court would be futile.
IT IS FURTHER ORDERED that defendants Nethanjah Childers, Richard Ashcraft, and Mesa are dismissed from the FAC without prejudice.
IT IS FURTHER ORDERED that, given the nature of the claim that the Court has permitted to proceed, this action is stayed for 90 days to allow Plaintiff and Defendants an opportunity to settle their dispute before the $350 filing fee is paid, an answer is filed, or the discovery process begins. During this 90-day stay period and until the Court lifts the stay, no other pleadings or papers may be filed in this case, and the parties may not engage in any discovery, nor are the parties required to respond to any paper filed in violation of the stay unless specifically ordered by the court to do so. The Court will refer this case to the Court's Inmate Early Mediation Program, and the Court will enter a subsequent order. Regardless, on or before 90 days from the date this order is entered, the Office of the Attorney General must file the report form attached to this order regarding the results of the 90-day stay, even if a stipulation for dismissal is entered prior to the end of the 90-day stay. If the parties proceed with this action, the Court will then issue an order setting a date for Defendants to file an answer or other response. Following the filing of an answer, the Court will issue a scheduling order setting discovery and dispositive motion deadlines.
IT IS FURTHER ORDERED that “settlement” may or may not include payment of money damages. It also may or may not include an agreement to resolve Plaintiff's issues differently. A compromise agreement is one in which neither party is completely satisfied with the result, but both have given something up and both have obtained something in return.
IT IS FURTHER ORDERED that if the case does not settle, Plaintiff will be required to pay the full $350 statutory filing fee for a civil action. This fee cannot be waived, and the fee cannot be refunded once the Court enters an order granting Plaintiff's application to proceed in forma pauperis. If Plaintiff is allowed to proceed in forma pauperis, the fee will be paid in installments from his prison trust account. See 28 U.S.C. § 1915(b). If Plaintiff is not allowed to proceed in forma pauperis, the full $350 statutory filing fee for a civil action plus the $52 administrative filing fee, for a total of $402, will be due immediately.
IT IS FURTHER ORDERED that if any party seeks to have this case excluded from the inmate mediation program, that party must file a “motion to exclude case from mediation” no later than 21 days prior to the date set for mediation. The responding party will have seven days to file a response. No reply may be filed. Thereafter, the Court will issue an order, set the matter for hearing, or both.
IT IS FURTHER ORDERED that if Plaintiff needs an interpreter to participate in the mediation program, Plaintiff will file a notice identifying the interpretation language and the need for the interpreter within 30 days from the date of this order.
IT IS FURTHER ORDERED that the Attorney General's Office must advise the Court within 21 days of the date of the entry of this order whether it will enter a limited notice of appearance on behalf of the Interested Party identified below for the purpose of participating in the Early Mediation Program. No defenses or objections, including lack of service, will be waived because of the filing of the limited notice of appearance.
Finally, the Clerk of the Court is directed to:
• Detach pages 17 through 90 from ECF No. 5, write the words “First Amended” above the words “Civil Rights Complaint” on page 17, and file the document as Plaintiff's “First Amended Complaint”; • Send Plaintiff a courtesy copy of the First Amended Complaint; and 20 • Add the Nevada Department of Corrections to the docket as an Interested Party and electronically serve a copy of this order and a copy of the First Amended Complaint on the Office of the Attorney General of the State of Nevada by adding the Attorney General to the Interested Party on the docket. This does not indicate acceptance of service.